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Dean v. Oakley-Avalon9/30/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Four defendants appeal orders denying their petitions to compel arbitration, raising a variety of arguments. We find that the court did not abuse its discretion in denying their petitions under Code of Civil Procedure section 1281.2, finding that if the arbitration proceeded there was a risk of conflicting rulings on common issues of law or fact. We therefore affirm without considering alternative grounds on which the motion was also denied.
Background
Plaintiffs, six couples and one individual, purchased homes in the Avalon subdivision in Oakley, California in 1998. The subdivision is adjacent to a Pacific Gas and Electric (PG&E; dehydration station that is no longer in use. Plaintiffs allege that the dehydration system polluted the ground water in the subdivision and that the builders and developers of the subdivision knew about but did not disclose the pollution at the time plaintiffs purchased their homes. Named in the complaints as defendants are PG&E; Porter Homes, Western Pacific Housing Corporation, Western Pacific Housing-Porter Division, Hofmann Construction Company, Hofmann Company, Oakley-Avalon, L.P., and Iron House Sanitation Agency. The three complaints that are consolidated on this appeal each allege causes of action for trespass, nuisance and negligence against PG&E; and for fraud, negligent misrepresentation, violation of Civil Code section 1102, breach of contract, declaratory relief, rescission and reformation against the developer entities. Two of the complaints also allege a ninth cause of action for "Damages" against Iron House Sanitation Agency, alleging that it negligently maintained its sanitation plant in such a way as to cause additional pollution to plaintiffs' property. This appeal is brought on behalf of Oakley-Avalon, L.P., Porter Homes, Western Pacific Housing Corporation, and Western Pacific-Porter Division.
Appellants moved to compel arbitration of all three actions based upon an arbitration provision in the purchase agreements with the plaintiffs. The relevant clauses provide: "In the event of any dispute or controversy between the parties relating to or arising out of this agreement, the property, or the disposition of deposit, then such dispute shall be resolved by binding arbitration in accordance with the provisions of the California Code of Civil Procedure. [ ] . . . This paragraph does not apply to any action for bodily injury or wrongful death, or any right of action to which California Code of Civil Procedure section 337.1 or 337.15 is applicable." This agreement was signed by each of the plaintiffs and by a representative on behalf of Porter Homes. Although the complaints allege an agency relationship between Porter Homes and Oakley-Avalon, L.P., Western Pacific Housing Corporation, and Western Pacific Housing - Porter Division, the existence of such a relationship is in dispute. In each case, the court denied the petition to compel arbitration, finding that the last sentence of the arbitration agreement quoted above is ambiguous and therefore unenforceable against the plaintiffs. The court also found as a second, independent reason for denying the petition, that " here are multiple parties and the risk of conflicting rulings on common questions or law exist. C.C.P. ยง 1281.2(c)."
Discussion
Appellants attack the lower court's orders deny
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